Thursday, May 26, 2022

Judicial takings and alternatives to offemsive litigation

This Seventh Circuit case (Diane Wood for Manion and Scudder) is weird and I am trying to figure it out. I think it illustrates broader points about the problem of offensive-or-defensive litigation on constitutional issues.

A group of property owners brought a state-court quiet title action against Indiana, arguing that they owned Lake Michigan beach-front property to the low-tide mark, as reflected in their deeds; the Indiana Supreme Court (Gunderson) held that Indiana holds and retains submerged property up to the high-tide mark. The legislature then codifed the decision, declaring its ownership and declaring laekfront property owner's non-ownership below that mark. A different group of property owners (non-parties to Gunderson) brought this action against the governor, AG, against the governor, AG, and heads of the agencies on natural resources and state lands, alleging a judicial taking and seeking a DJ and injunction that they owned the property to the low-water mark.. The  panel dismissed the claim on standing grounds, finding no traceability or redressability to the state officials sued, since they do nothing to enforce Gunderson or the statute defining the property lines and can do nothing to grant the plaintiffs title to the challenged portion of the lakefront. The court also identified federalism-and-comity based caution (reflecting the ideals, if not applications, of Rooker-Feldman) in hearing a case raising a novel legal theory that requires a lower federal court to review the merits of a state supreme court decision. The court dismissed with leave to amend, although I am not sure what they can do to salvage this action.

The outcome is correct, but the case highlights some weird doctrinal interstices. It also shows how constitutional litigation occurs outside the ordinary pre-enforcement offensive action against a state executive. Assuming judicial takings can be a thing, what are plaintiffs such as these to do?

1) The appropriate course for a judicial-takings claim is to appeal the state-court decision effecting the taking to SCOTUS. That is not available to the federal plaintiffs, who were not party to the state decision. That also explains why the court did not dismiss on RF grounds--the federal plaintiffs were not state court losers.

2) One possibility is that non-parties cannot suffer a judicial taking, since the state-court judgment had no effect on their property rights. Thus Gunderson may have taken the property of the owners who sued in state court, but not of the different owners who sued in federal court. This has intuitive appeal. Judgments in non-class-actions do not bind non-parties. It makes no sense to give a judgment a broader effect as a taking than as a judgment. Any "taking" of the federal plaintiffs' property arises from Gunderson's precedential effect in future litigation, but any taking should not happen before then. This point should apply had the federal plaintiffs brought a claim for compensation for the taking rather than an injunction (the court suggests they would have had standing to do that, because these officials could provide compensation). These owners are not (yet) entitled to compensation because Gunderson did nothing to their property rights, beyond precedential

The district court rejected any judicial-takings claim here because Gunderson did not strip these owners of established ownership rights, as required by the Scalia plurality in Stop the Beach. At worst it resolved an ambiguity as to ownership; at best it declared, as a matter of state law, that they never owned this land at all and it has always been state property. My argument provides another basis for rejecting that claim--as non-parties to Gunderson, their property was not lost because that decision did nothing as to their property.

3) The plaintiffs made a strange concession: that their challenge to the statute turns on their judicial-takings claim. "If Gunderson stands, it follows that the Owners never held title to the land below the ordinary high-water mark, and the legislation therefore had no effect on their property rights." I do not understand this point. The legislature owns state property, subject to judicial review and interpretation. The state supreme court having declared the state owns to the high-water mark, I do not understand why the legislature could not enact legislation declaring state ownership, whether consistent with Gunderson or consistent with the owners' deeds. To the extent state declarations of ownership below the high-water mark constitute a taking, why does the statute alone not effect that taking? This does not resolve the standing problem as the court sees it, since the defendant officials continue to lack power to grant ownership. But it makes the possible taking argument clearer.

4) Traceability and redressability fail because the court cannot order any of the defendants to grant the plaintiffs title to the contested land. How, then, can they assert whatever rights they might have? The court imagines how this comes up for the owners:

Gunderson recognized that members of the public have a right to walk on the beach in front of the Pavlocks’ house as long as they stay lakeward of the high-water mark; an injunction requiring the State to refrain from any action would not grant the Pavlocks the right to exclude. If Cahnman wants to sell his beachfront property, he may convey land only from the high-water mark. The requested injunction would not give him title to submerged lands that Indiana law (confirmed by both the state’s highest court and its legislature) says belongs to the state. To the extent the Owners’ deeds conflict with Gunderson and HEA 1385, the latter two sources govern. And if, for example, the Pavlocks tried to sue people who walked on the section of beach between the high- and low-water marks for trespass, or Cahnman tried to hoodwink a buyer by representing that he held title down to the low-water mark, an injunction against state officials would not prevent Indiana’s Recorder’s Offices from correcting that error, or Indiana courts from applying Gunderson.

This hints at how this sort of takings claim, if it can exist, should come to court. The Pavlocks sue people walking on  the beach for trespass; the trespassers cite Gunderson and/or the statute as the source of their right to walk there; the Pavlocks argue that the decision in their case applying Gunderson and the statute effect a taking; and that argument provides a basis for § 1257 review of the state court. Cahnman hoodwinks a seller; the seller sues him for hoodwinking him, citing Gunderson and the statute; Cahnman defends on the ground that Gunderson and the statute effect a taking; and that defense provides a basis for § 1257 review of the state court.

The hypothetical suit against the trespassers should sound somewhat familiar to Fed Courts geeks--it is basically Mottley. This suggests that the Mottleys could not have sued the executive when Congress enacted the law prohibiting free passes--like the plaintiffs here, they would have lacked standing. They would have been forced to proceed, in state court, as they did--Mottleyssue the Railroad for breach; RR argues impossibility based on the statute; Mottleys argue statute violates the 5th Amendment; argument provides a basis for § 1257 review.

Again, consider this another example of asserting constitutional rights outside the typical offensive EPY action. Some of these claims are somewhat offensive in that the Pavlocks initiate the lawsuit, although the federal constitutional issue is not the main piece of the claim and arises downstream in the litigation. Nevertheless, we accept this as appropriate procedure, not some conspiracy to eliminate judicial review.

Posted by Howard Wasserman on May 26, 2022 at 12:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Property | Permalink | Comments (0)

Tuesday, May 24, 2022

Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? He does it not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks. Instead, he is thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Posted by Howard Wasserman on May 24, 2022 at 10:41 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, May 13, 2022

JOTWELL: Coleman on Reda on data and inequality

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Danya Sochair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 Colo. L. Rev. ___ (forthcoming 2023), on how data has been misused in a partisan rulemaking process to create and further procedural inequality.

Posted by Howard Wasserman on May 13, 2022 at 09:18 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Thursday, May 12, 2022

More overlapping jurisdictional doctrines

Another example of overlapping "jurisdictional" doctrines, in which courts take the same fact--whether an executive official has a present or future intent to enforce an invalid law--going to ripeness, standing, and EPY. The Eighth Circuit held that sovereign immunity bars a challenge to a Minnesota law prohibiting certain false statements in campaign materials, because the four defendant prosecutors, while responsible for enforcement, had no present intent to enforce the law. The court discusses precedent in which the court found standing and ripeness but held the executive had sovereign immunity because, while the responsible executive, he had no intent to enforce.

I continue to have several problems with this. First, it makes no sense for three doctrines to turn on one fact. Second, it makes less sense for a fact to point different ways for different doctrines--if there is sufficient threat of enforcement to establish standing, there should be sufficient threat of enforcement to establish an ongoing violation for EPY. Third, this is all merits and it would be nice if we treated it as such.

Finally, note that the court cited the SB8 case for the basics of EPY and the absence of an enforcing executive.

Posted by Howard Wasserman on May 12, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 11, 2022

Random reactions to some items in the news

My response to some random news items.

Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

Posted by Howard Wasserman on May 11, 2022 at 04:49 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 09, 2022

State Interests for Jurisdiction by Registration

This is the final post by Charles "Rocky" Rhodes and Cassandra Burke Robertson (Case) on next Term's personal jurisdiction case. They will be back for the argument.

Our last post maintained that some state interest in the litigation is necessary for a corporation’s registration to support jurisdiction. This may appear counterintuitive. After all, if a corporation decides to register to do business when the state’s registration scheme specifies the jurisdictional consequences of registration, shouldn’t the registration operate as other forms of consent to jurisdiction, such as forum selection clauses, which do not typically necessitate a state interest?

But we think that the state-interest question is important enough that instead of joining an amicus brief supporting either party, we are working to draft a brief that charts a narrower course. Both the petitioner’s position (that the state may condition registration on consent to jurisdiction without exception) and the respondent’s position (that the state may not condition registration on consent to jurisdiction at all) raise serious federalism concerns.

First, the risk of state overreach is real, especially in areas where state policies are both diametrically opposed and politically salient. Imagine that Texas adopted a consent-by-registration statute as broad as the Pennsylvania one. National drugstores like CVS would have to register to do business and submit to personal jurisdiction as a condition of registration. Would the registration statute then allow someone to sue CVS in Texas for filling a mifepristone prescription outside the state of Texas? The threat of jurisdictional overreach reinforces the need for a sovereign interest, and it suggests that legislative jurisdiction and adjudicative jurisdiction can't be wholly separated.

At the same time, however, forbidding the state from extracting jurisdictional consent kneecaps state power so severely that it also undermines the federalist system. This is especially apparent in products liability cases, where it's common to have a seller, manufacturer, component-part manufacturer, buyer, and the injury in different states (as happened in the Cooper Tire lawsuit). In such cases, there may be no single state where all defendants could be subject to either general or specific jurisdiction. The state’s power to extract consent as a condition of registration allows the parties to be brought before the court in a single lawsuit. As Alexandra Lahav has recently noted, restricting states’ power to exercise personal jurisdiction in products liability cases undermines state tort law and risks granting effective “immunity from suit for manufacturers” that is at odds with state substantive law.

Our position is therefore different from either of the parties before the Court in Mallory: we think that the state’s authority to extract jurisdictional consent is a legitimate exercise of sovereign authority, but that its legitimacy extends only as far as the state’s sovereign interest.

This middle position fits with procedural principles, historical practice, and constitutional doctrine.

Differences exist between consent through registration and consent by contract or waiver by litigation conduct. As Tanya Monestier observed, contractual or litigation-conduct submissions to jurisdiction are limited to identifiable parties or specific lawsuits—a provision in a contract between private parties governs the forum for their dispute, or litigation conduct in an existing suit waives an otherwise available jurisdictional objection. In contrast, consent through registration represents the corporation’s acceptance of an obligation to defend those claims the state demands to acquire the benefits of engaging in intrastate business under the state’s sovereign authority.

Even though the Supreme Court has long viewed such statutory exchanges of obligations and benefits as manifesting a valid form of consent, the exercise of state sovereign authority in exacting such an agreement implicates constitutional concerns. These concerns, though, as Aaron Simowitz explained, do not doctrinally mirror the restraints for contacts jurisdiction. Courts should evaluate the constitutionally permissible scope of consent through registration under the limitations that have developed surrounding this type of jurisdictional assertion and other analogous statutory exchanges between sovereign states and citizens.

As discussed in our first post, the Supreme Court in the nineteenth century consistently expressed that the permissible bounds of jurisdiction against an appointed agent under a registration statute extended only to suits related to the business conducted in the forum. Although one reading of Justice Holmes’ opinion in Pennsylvania Fire in the early twentieth century is that a corporate registration statute may authorize jurisdiction for even unrelated claims without any connection to the sovereign authority of the State, the Supreme Court just three years after Pennsylvania Fire cautioned that it did “not wish to be understood that the validity of such service . . . would not be of federal cognizance.”  The original understanding thus presupposes some potential constitutional limits on the extent to which a corporation may be required to consent to jurisdiction to obtain the benefits of conducting intrastate business activities.

Due process ensures the government’s compliance with fundamental notions of fairness with respect to any of exercise of its power. As we have argued, in analogous statutory exchange situations, such as conditions on a land-use permit or implied consent to blood-alcohol testing as a condition for the privilege of driving on the state’s roads, the Court has required a congruence between the scope of the consent granted and the state benefits obtained as part of the exchange. Jeff Rensberger similarly relied on analogies to waivers of constitutional objections to state-court proceedings, exactions in takings cases, and the unconstitutional conditions doctrine to urge that a state sovereign interest is necessary to satisfy constitutional limitations.

Requiring the corporation to consent to all-purpose dispute-blind jurisdiction, for any claim filed by any person arising anywhere in the world, transcends this congruence when the state has no sovereign interest in the proceeding. Without a sovereign interest in the proceeding, the state is leveraging its permission to conduct intrastate corporate activities to regulate the corporation’s global activities, a disproportionate “deal” as the state has no generic interest in regulating a foreign corporation’s out-of-state conduct. On the other hand, if a sufficient state interest exists in the dispute, the arrangement is proportional. In exchange for the state’s forbearance in excluding, or attaching additional conditions on, the corporation’s in-state conduct, the corporation is agreeing to its amenability to suit for claims that have some connection to a state sovereign interest.

Jack Preis has argued convincingly that the Due Process Clause is not the only limit on personal jurisdiction—the Dormant Commerce Clause must also be considered, as a plaintiff’s forum choice over out-of-state corporations may burden interstate commerce. Under the Dormant Commerce Clause’s demand that state laws cannot discriminate against or impose an undue burden on interstate commerce in the absence of a sufficient local interest, Jack contends that registration statutes cannot authorize jurisdiction when the state does not have a strong enough interest in the proceeding, such as an in-state injury or a state citizen injured outside the state, a perspective we have mirrored in our own work.

Our view, then, of the correct answer to the question presented in Mallory—whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state—is neither yes nor no, but sometimes, depending on the state’s sovereign interest in the case. Of course, both parties will see things differently, with Mallory arguing the answer is always no and Norfolk Southern Railway urging the answer is always yes. We’ll be back in the fall during the week of argument, thanks to Howard’s kind invitation, to discuss the parties’ positions in more detail as fleshed out by their merits briefing and the Court’s lines of inquiry.

Posted by Howard Wasserman on May 9, 2022 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Monday, May 02, 2022

Why Mallory?

This is the second post on next Term's SCOTUS case on general personal jurisdiction by Rocky Rhodes (South Texas) and Cassandra Burke Robertson (Case).

As we mentioned in our last blog post, scholars and practitioners have been waiting a very long time for the Supreme Court to take up the question of the states’ power to require consent to personal jurisdiction as a condition of registration to do business. Another case, Cooper Tire & Rubber Company v. McCall, appeared to be a strong candidate for a cert grant. It attracted substantial cert-stage amicus support, and we predicted that the Court would be interested in it.

Instead, however, the Court granted certiorari in Mallory v. Norfolk Southern Railway Co. and appears to be holding Cooper Tire for the decision in Mallory.

Both the petitioner and respondent in Mallory argued that Mallory presents a cleaner legal issue. In some ways, the parties are right—but Mallory does have some quirks of its own.

What is cleaner in Mallory is the legal background. Pennsylvania’s long-arm statute is unique in that it explicitly provides that by registering to do business companies consent to general personal jurisdiction in the state. This transparency is important to the case in two ways.

First, in a case challenging the state’s power, it is helpful to have a clear statement of the state’s law. The Georgia law at issue in Cooper Tire was less clear; although the Georgia Supreme Court followed state precedent concluding that registration impliedly demonstrated all-purpose consent to personal jurisdiction, the court expressed some uncertainty as to whether that precedent reflected the legislature’s intent and recommended that the legislature clarify the long-arm statute.

Second, Pennsylvania’s clear statement is helpful in determining the scope of consent. That is, as Tanya Monestier has convincingly argued, implied consent is not consent at all—it is, instead, a trap for the unwary corporation that would have no reason to expect that business registration would give the courts of a state the authority to hear any and all claims against that business, including claims that have no connection at all to the forum.

Pennsylvania’s explicit statute, on the other hand, gives fair warning to corporations about the effect of their decision to register. In that sense, it makes registration-based consent mirror an arbitration clause in a contract of adhesion—not a term that the signing party necessarily wants, but one that the party is willing to accept to obtain the benefits of the contract. The Supreme Court, of course, has been highly deferential to contracts including arbitration and forum selection clauses, even in contracts of adhesion.

A clear long-arm statute and fair notice are helpful to enforcement. But are they enough? We have argued elsewhere that there is one more essential piece of the puzzle that makes state-required consent different from private agreements: a sovereign interest in the case. That is, the state can explicitly condition benefits on consent to jurisdiction—but only insofar as the state has a sovereign interest in the underlying case. Jack Preis and Jeff Rensberger have similarly separately argued that some state benefit or a state sovereign interest is required to satisfy constitutional limits on exacting consent through a registration statute.

On that point, Cooper Tire appears stronger than Mallory. The plaintiff in Cooper Tire was a passenger in a car that was involved in an accident in Florida. But the driver of the car, who was also a defendant in the suit, was a Georgia resident, as was the used-car dealer who sold the car and inspected the tire. Because the plaintiff wanted to sue the driver, the car dealer, and the tire manufacturer, it made sense to sue in Georgia. And Georgia has a clear sovereign interest in ensuring the safety of the cars sold in the forum as well as adjudicating the liability of state residents. Furthermore, it is not clear that any other forum would have had personal jurisdiction over all three parties—the used-car dealer, for example, seems to have no Florida contacts.

With Mallory, it is not evident that there is a sufficient state interest. The respondent has argued that there is no tie to Pennsylvania, but that is not entirely true—the plaintiff’s complaint notes that Mallory worked for Norfolk Southern in Pennsylvania for the last part of his career before retirement, although there was no allegation that any asbestos exposure took place in Pennsylvania. And by the time suit was filed, Mallory was living in Virginia, not Pennsylvania. Still, the employment connection may provide some basis for the state to have an interest in the outcome of the suit—the state would, after all, have at least some interest in the employment relationship within the state. But if the Supreme Court were to adopt our view of the importance of the underlying sovereign interest, it may need to remand the case for further fact-finding. Neither the plaintiff nor the defendant has fleshed out the state connection.

Posted by Howard Wasserman on May 2, 2022 at 09:47 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Private enforcement and the state court option

Oklahoma enacted (although it awaits the governor's certain signature) an SB8 copycat. Reproductive-rights advocates have brought an original-jurisdiction action in the Supreme Court of Oklahoma. This is the other option for rights-holders, to the extent state procedures are more forgiving than federal.

On the other hand, the hell with Oklahoma AG John O'Connor, who said this:

Once again, the people of Oklahoma have spoken through their representatives in defense of the rights of unborn human beings, and once again abortion clinics have run immediately to the courts to attempt to trample on the people’s voice and the most innocent humans among us.

Indeed, with SB 1503 they have literally attempted to sue before the bill has even gone to the governor’s desk, even though the U.S. Supreme Court dismissed preliminary challenges to a similar law not six months ago.

As to the first, hasn't Oklahoma joined with the rest of the Republican states to ?\"run immediately to the courts to attempt to trample on the people's voice" as reflected in laws and regulations enacted and enforced by the Biden Administration? As to the second, what does SCOTUS have to do with a challenge under Oklahoma law; I thought the people in Washington should butt-out of Oklahoma's business.

And kind of the hell with Bloomberg for reporting such a dishonest statement and politically hypocritical statement. But that is par for the course.

Posted by Howard Wasserman on May 2, 2022 at 09:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, April 30, 2022

Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.

Posted by Howard Wasserman on April 30, 2022 at 01:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, April 28, 2022

Supreme Court to Address Jurisdiction through Corporate Registration

SCOTUS granted cert for in Mallory v. Norfolk S. Ry. Co., on whether a state can require businesses to consent to general jurisdiction as a condition of registration. Before co-authoring the authoritative works on SB8 with me, Rocky Rhodes (South Texas)  published several piece on jurisdiction and consent/registration with Cassandra Robertson (Case). They have agreed to write a few posts now and perhaps to come back when the case is argued next Term.

The Roberts Court is still interested in personal jurisdiction, despite already hearing seven such cases over the last eleven years. These cases have re-shaped adjudicative jurisdiction, substantially narrowing the fora where plaintiffs can bring suit. Now, with its cert grant this week in Mallory v. Norfolk S. Ry. Co., the Court is poised to reconsider its cryptic century-old holding that states can require corporations to consent to personal jurisdiction within the state—even for claims arising outside the state—as a condition of registering to do business.

The Court’s earlier holding on jurisdiction predicated on registration pre-dated the “minimum contacts” approach that the Court adopted in International Shoe Co. v. Washington (1945).  The issue of whether a corporation’s registration authorizes adjudicative jurisdiction was a difficult question after International Shoe, befuddling courts and commentators for generations. But the question has become especially salient—and even more difficult—after the Roberts Court’s increasingly restrictive approach to personal jurisdiction, so it is not surprising that the Supreme Court finally agreed to address the issue. We’re very grateful for Howard’s invitation to post on this grant and its importance.

Contacts Jurisdiction and Consent Jurisdiction

Scholars familiar with civil procedure and conflicts are well aware that the Roberts Court has curtailed the scope of a state’s adjudicative jurisdiction. The Court limited “general” or “dispute-blind” jurisdiction to the forum in which the defendant is “at home,” such as a corporate defendant’s place of incorporation or principal place of business, rather than allowing such jurisdiction in any forum in which the defendant conducts substantial, continuous, and systematic activities. The Court further limited “specific” or “forum-linked” jurisdiction, which arises in states connected to the dispute, by demanding a tighter showing that the defendant itself established purposeful contacts with the forum state, rather than the contacts being created by an intermediary or the plaintiff. While the Supreme Court’s decision last summer in Ford Motor Co. v. Montana Eighth Judicial District Court recognized that, if purposeful availment exists, the state can exercise jurisdiction even if the dispute merely “relates to” rather than “arises from” such contacts, the Court repeated its prior normative objection to forum shopping by plaintiffs. So, while Ford was a step in the right direction, the overall impact of the Roberts Court’s decisions has limited the available fora that plaintiffs may choose under the traditional “minimum contacts” analysis from International Shoe.

But there are alternative grounds to establish personal jurisdiction. One that has been long recognized is that defendants may consent to personal jurisdiction, either by contract or litigation conduct. Even if contacts jurisdiction is lacking, consent may provide another jurisdictional hook. Plaintiffs have sought to employ this alternative jurisdictional hook as the Roberts Court has restricted contacts jurisdiction, asserting that a defendant’s consent to jurisdiction is conferred when a defendant corporation registers to do business in the forum state, which is the issue squarely presented in Mallory. This jurisdictional basis has a long history, although it largely became unnecessary until the Supreme Court’s sharp curtailment of general jurisdiction.

State Corporate Registration Statutes

            Every state statutorily requires out-of-state corporations transacting in-state business to register with and obtain a certificate of authority from a designated official to do business in the state. Without obtaining the required authorization, a nonresident corporation cannot access the state’s judicial system under all or almost all these registration statutes, with many states also imposing fines and other penalties, including the restraint of further intrastate business transactions, for the failure to comply. The Supreme Court has consistently upheld the constitutionality of both these registration and authorization statutes and their associated consequences for non-compliant nonresident corporations.

            Not all corporate business transactions, though, can constitutionally trigger a registration responsibility in the absence of congressional approval. The dormant Commerce Clause prohibits states from placing, in the absence of congressional authorization, an undue burden on interstate or international commerce, thereby barring state-compelled registration or the accompanying burdens on out-of-state or international corporations not conducting local business operations within the state. General corporate registration statutes thus limit their application to those nonresident corporations that “transact business” in the state, which is typically statutorily defined by excluding those in-state activities that are not sufficient to transact business (such as interstate business activities, isolated in-state transactions, or mere solicitations). Only those corporations engaging in an ongoing and regular course of intrastate or local business activity must register and obtain a certificate of authority, which implicates the regulatory authority of the state to attach conditions on the terms under which the nonresident corporation operates within the state.           

            Historically, the primary purpose of such statutes was to provide a basis for service on an in-state agent within state territory that would authorize jurisdictional power over the nonresident corporation while comporting with the then-prevailing sovereignty limitations on adjudicative authority. States in the mid-nineteenth century began enacting such statutes compelling corporations, as a condition for transacting in-state business, to register with the state and appoint an agent for service of process, thereby ensuring the registering corporation’s amenability for its in-state obligations. The Supreme Court first upheld such a scheme in Lafayette Insurance Co. v. French (1856), reasoning that a corporation “must be taken to assent to the condition upon which alone such business could be there transacted.” Yet the Court explicitly limited its decision to situations in which the suits were related to the business conducted within the forum.

            Subsequent nineteenth-century cases from the Supreme Court continued to describe the permissible corporate consent for the privilege of conducting business as limited to actions related to the corporation’s conduct of business within the forum. As the corporate presence fiction developed, though, service on a statutory agent became a jurisdictional basis in early twentieth-century cases to adjudicate claims unrelated to the corporation’s activities within the state, with some cases indicating that service on a registered corporate agent within the state sufficed for amenability. Yet these cases were linked to the then-prevailing “presence” by “doing business” construct. The Court was hesitant to predicate a defendant’s amenability on serving a registered agent when the defendant no longer was conducting business within the forum, several times construing state registration statutes as not encompassing such a questionable jurisdictional reach.

            Yet if the defendant was conducting business in the forum, the Supreme Court did not need to evaluate the impact of registration on the defendant’s amenability under other jurisdictional doctrines that developed in the twentieth century, such as corporate presence and implicit consent through in-state activities. While these early twentieth-century fictions were cast aside by International Shoe in favor of a more realistic analysis of the reasonableness of the jurisdictional assertion in light of the defendant’s forum activities, the new Shoe paradigm precluded the need in most cases to evaluate the continuing relevance of jurisdiction predicated on corporate registration alone. This caused the Supreme Court to never return to the constitutionality of jurisdiction predicated on corporate registration except in dicta until its recent grant in Mallory.

            The Split in the Constitutionality of Jurisdiction by Registration

            The permissibility of such jurisdiction based on corporate registration depends on interpreting the state’s corporate registration statute while recognizing the constitutional limits that may exist.

            Existing state registration statutes rarely specify the jurisdictional consequences, if any, of a corporation’s in-state registration to do business. Most of these consequences have depended upon case law interpretation. In Georgia, for example, Cooper Tire & Rubber Co. v. McCall reasoned its earlier decisions had interpreted registration as authorizing general jurisdiction, even though the state registration statute did not specify such a jurisdictional consequence. Pennsylvania, on the other hand, is the only state with an unambiguous statutory provision that a nonresident corporation’s registration to do business “shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction . . . .”

            But the statutory or case law interpretation must also comply with constitutional limits. Before the Supreme Court limited general jurisdiction to only those locales where the defendant was “at home,” state and lower federal courts were hopelessly split on the constitutionality of state authorization of jurisdiction based on registration to do business. But there has been a definitive trend in the decisions of state supreme courts and the federal circuit courts since the Roberts Court explicitly limited general jurisdiction to a defendant’s home states in Daimler AG v. Bauman.  

            These courts have indicated that the continued constitutional validity of all-purpose jurisdictional assertions via corporate registration is doubtful after Daimler’s stated concerns with “grasping” or “exorbitant” jurisdictional rules. The Second Circuit, for example, argued that all-purpose consent from registration would subject every corporation “to general jurisdiction in every state in which it registered,” which would rob the “at home” requirement “of meaning by a back-door thief.” But rather than confronting the issue directly, state high courts and federal circuit courts have adopted statutory interpretations of the registration statutes to avoid the constitutional issue, even in jurisdictions such as Delaware, Nebraska, and New York that previously interpreted their registration statutes as authorizing all-purpose jurisdictional assertions.

            There are only two recent cases where a state supreme court did reach the constitutional holding: Mallory, declaring the Pennsylvania explicit statute unconstitutional, and Cooper Tire, upholding jurisdiction under past Georgia case law. The losing parties in both cases sought certiorari review at the Supreme Court, with Cooper Tire filed first and attracting all the attention of amici. Our next post will discuss some of the differences between the two cases, exploring why the Court might have chosen to grant Mallory as the vehicle to examine registration while presumably holding Cooper Tire.      

Posted by Howard Wasserman on April 28, 2022 at 01:26 PM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Sunday, April 24, 2022

HB7 lawsuit

Filed Friday. Plaintiffs are a history prof at Central Florida, two public-school teachers, a rising kindergartner, and the owner of a DEI consulting firm. The choice to file everything in one action has its drawbacks. Consider:

• The First Amendment analysis and likely conclusion varies among the four educational plaintiffs. The prof has the strongest free speech claim, given the scope of academic freedom and its incorporation into the First Amendment. The student has the weakest claim, because I do not believe students have a First Amendment right to learn or not learn anything or to receive (or not) any information as part of the public-school curriculum.* The public-school teachers are somewhere in the middle, claiming some mantle of academic freedom but generally treated like most public employees. Query whether it would have made strategic sense to bring separate suits, allowing the court to focus on the unique First Amendment analysis for each and to earn a strong victory on the one obvious winner.

[*] if they do, consider the unintended consequences--a conservative student would have a viable First Amendment claim against a school board that prohibits, for example, teaching that Jim Crow was anything other than an unalloyed evil.

• The consultant brings a claim as an employer, alleging that the law infringes her right to present certain views in employee and organizational trainings by defining certain trainings (those that present certain viewpoints) as employment discrimination. But I am not sure this claim is appropriate for an offensive pre-enforcement claim. Any employment discrimination would be challenged by the employer filing an administrative or civil action. No defendant--the governor, the AG, members of the Board of Education, and members of the Board of Governors--is responsible for enforcing those provisions in that context. To the extent the consultant is concerned about what her employees might do, she may have to wait and defend on First Amendment grounds.

Posted by Howard Wasserman on April 24, 2022 at 01:26 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 21, 2022

Another SB8 funder suit

This one in federal court in Texas (HT: Josh Blackman). Plaintiffs are an abortion fund and individuals who work for and contribute to it; defendants are individuals who have initiated state proceedings or sent cease-and-desist letters; both should be enough to establish standing to stop future actions (and thus get a determination of SB8's validity). Two weird pieces. First, the complaint contains no allegations that the defendants act under color, despite being brought under § 1983; the lawyers dropped those allegations in favor of a lengthy description of SB8's legal scheme that should not be part of a complain. Second, it seeks a declaration that Texas' criminal abortion ban is invalid and unenforceable (as the law at issue in Roe), but did not sue anyone whose job is to enforce that ban; courts can be free-wheeling with DJs (which come close to advisory opinions anyway), but they at least demand a proper adverse party.

It's always something. This again shows that offensive, pre-enforcement litigation in federal court is possible and workable. It required more work and is more of a pain-in-the-neck. But it is available and consistent with ordinary rules of civ pro and civil rights litigation.

Posted by Howard Wasserman on April 21, 2022 at 08:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, April 20, 2022

More universal injunctions

Sam Bray exposes the flaws in the district court's reasoning on issuing a universal injunction on enforcing the transportation mask mandate. I will add a couple points. First, the district judge committed every analytical error Judge Sutton identified as a problem with universality. Second, Sam's makes a point I have made and that is worth emphasizing: To the extent it may be difficult to identify who is protected by a particularized injunction, that is for the executive in its future enforcement decisions and the district court in enforcing its judgment; it should not be the predicate towards beginning with overbroad relief.

Finally, I co-sign Sam's conclusion:

[T]his is a deeply broken system.  * * * But it is a deeply broken system when the action and inaction of the various federal actors--House, Senate, President, agency reporting to the President--can be immediately swept aside by a single district court judge who chooses a remedy that is not only for the plaintiffs but for everyone.

* * * It doesn't have to be this way.

But it will stay this way if conservatives object to "nationwide" remedies only against Republican presidents, and liberals object to them only against Democratic presidents. Selective outrage and what-about-ism on the other side's inconsistency are a recipe for continued stalemate. If you object to these remedies on principle, stick to your principle, no matter who is President and no matter what you think of the merits.

Critics of universal injunctions are like free-speech absolutists--cursed with intellectual consistency.

Posted by Howard Wasserman on April 20, 2022 at 09:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 19, 2022

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

Posted by Howard Wasserman on April 19, 2022 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

JOTWELL: Campos on Gilles on compelled arbitration

The new Courts Law essay comes from Sergio Campos (Miami), discussing the legislative testimony of Myriam Gilles (Cardozo) on bills designed to limited compelled arbitration.

Posted by Howard Wasserman on April 19, 2022 at 10:59 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Sunday, April 17, 2022

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

Posted by Howard Wasserman on April 17, 2022 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

An experiment

I was able to reach Erie for the first time since spring 2019 (i.e., pre-pandemic). My approach to that has been to teach Erie and Hanna, then present the Erie flowchart we all use, then work through a series of problems demonstrating each analytical path.

But I am pressed for time. In 2019, I spent four 70-minutes classes on Erie last time. This semester, I reached Erie with about 250 minutes of class time (two 105-minute sessions plus another 50-or-so minutes).

My attempted solution was to have them reach Erie and Hanna, but to lecture on them in class, which took about 60 minutes of class time. I now have 210 minutes to work through the problems.

We'll see how it goes.

Posted by Howard Wasserman on April 17, 2022 at 10:40 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, April 14, 2022

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part II

Our second SB8 article has been published in SMU Law Review. This focuses on the commonality of defensive litigation against constitutionally invalid law and how defensive litigation might play out.The third piece, on New York Times as historical analogue, will be published in Houston Law Review next fall.

Posted by Howard Wasserman on April 14, 2022 at 06:01 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, April 11, 2022

Civil Procedure in the Chief Justice's Year-End Report on the Federal Judiciary

Published in Stetson Law Review, part of a SEALS symposium on the Roberts Court's renewed interest in civil procedure.

Posted by Howard Wasserman on April 11, 2022 at 09:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, April 06, 2022

A wild hypothetical

So something that proved more complicated than expected.

In transitioning from Subject Matter Jurisdiction to Personal Jurisdiction, we discuss the underlying process of World Wide--Audi and VWA paid for WW and Seaway to successfully challenge PJ through state court and to SCOTUS, then removed when SCOTUS held there was no PJ and the state trial court dismissed the claims against them.

But then I posed the following to the CivPro ListServ and no one could figure out the answer: Suppose the trial court found lack of personal jurisdiction and dismissed the claims against WW and Seaway. The case is now removable. If Audi and VWA remove, how does Robinson appeal the dismissal of the other defendants? Can Robinson's intent to appeal render the case not removable, perhaps by filing a notice of appeal before the Audi and VWA can file the notice of removal? If the defendants get into federal court before Robinson can appeal, his options seem limited.

This hypo is limited because unlikely. The strategy Audi and VWA followed is unavailable in most cases because § 1446(c)(1) prohibits removal of a diversity action that becomes removable more than a year after filing; it takes more than a year to brief and argue a motion to dismiss and more than one layer of appellate review. That limitation did not exist in 1980, which is why Audi and VWA could remove more than 3 years after the suit was filed. So this scenario likely does not arise in either direction.

Still, it exposes an interesting gap in the statutory framework. And it forced some creative solutions. Robinson might ask the federal court to stay the proceedings so the state appeal can proceed (and to not attempt to enjoin the state court from proceeding with the case). Or Robinson might amend in federal court to re-add the dismissed defendants, then ask the federal court to certify the propriety of the PJ dismissal to the state supreme court.

I stumbled on a third possibility this morning--Audi and VWA remove, then Robinson seeks a writ of mandamus to the 1oth Circuit, asking for review of the PJ dismissal. That prior order is part of the removed case. Robinson can satisfy the requirements for mandamus. This is extraordinary case. He does not have other adequate means to obtain relief, because the PJ issue affects whether the case should be in federal court in the first place--if the state court erred, the case should not have been removed and Robinson should not have to litigate in federal court, something that cannot be adequately protected if he must await final judgment in federal court. Robinson also faces the risk that the court of appeals would affirm subject matter jurisdiction, even if it believes the state court erred on PJ, because there was jurisdiction at the time of trial.

However unlikely, a fun problem that might expose a weird hole in the statutory scheme.

Posted by Howard Wasserman on April 6, 2022 at 11:54 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, April 04, 2022

"Favorable termination" requires non-conviction and nothing more

Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).

Posted by Howard Wasserman on April 4, 2022 at 09:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Bartholomew on Borchers on tag jurisdiction

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and "Tag Jurisdiction" in the Pennoyer Era, 72 Case W. L. Rev. 45 (2021), considering Gorsuch's Ford opinion and arguing for corporate tag jurisdiction.

Posted by Howard Wasserman on April 4, 2022 at 03:00 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, April 01, 2022

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

Posted by Howard Wasserman on April 1, 2022 at 03:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 28, 2022

Cert denied in John Doe relation back

The Court denied cert (without noted dissent) in Herrera v. Cleveland. The Seventh Circuit held (consistent with every circuit to consider the issue) that John Doe claims do not relate back under FRCP 15(c)(1)(C), because intentionally pleading a Doe placeholder when the plaintiff does not know the defendant's name is not a mistake concerning the proper party's identity. Too bad. I thought this case had a chance to get to the Court. The approach to mistake is arguably inconsistent with the Court's broad take on relation back in Krupski and has adverse effects on civil rights plaintiffs. Civ Pro professors and civil-rights activists filed amicus in support of cert.

Posted by Howard Wasserman on March 28, 2022 at 04:36 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, March 26, 2022

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

Posted by Howard Wasserman on March 26, 2022 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, March 23, 2022

More offensive SB8 actions

Abortion-funding organizations have filed lawsuits against the Thomas More Society (ND Ill) and the America First Legal Foundation (DDC), seeking to enjoin them from bringing actions to declare SB8 constitutionally invalid and to enjoin them from enforcing the aiding-and-abetting provisions of SB8. Both defendants have initiated pre-suit discovery proceedings in Texas court, seeking to gather information about the organizations' funding efforts; they use that as the basis for standing, arguing that it shows an intent to enforce.

There should not be a Younger problem. The target of a pre-suit discovery proceeding cannot challenge the constitutional validity of the underlying law that might be the basis for the suit; the organizations therefore lack the adequate opportunity to raise their federal constitutional rights in that proceeding.

The complaints have several potential problems as pleaded. First, they lack allegations that the defendants act under color, which is necessary to state a constitutional claim. Second, I wonder if they may be subject to a § 1404 motion to transfer venue. Plaintiffs went to the defendants' "homes" to get out of Texas. But if the purpose of a suit is to challenge the validity of Texas law and to stop the initiation of suits in Texas courts under Texas law, it seems as if a district court within Texas would be a more proper forum. I had not considered this issue until now and I have to give it more thought. Third, the fourth claim alleges SB violates due process by expanding who can bring state-court suits beyond Article III; that is nonsense.

As an abortion-rights supporter, I am glad to see the community moving past the simple approach of WWH (which was bound to fail) and identifying real, if more complicated, ways to challenge the validity of the law.

Posted by Howard Wasserman on March 23, 2022 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, March 21, 2022

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

Posted by Howard Wasserman on March 21, 2022 at 04:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

JOTWELL: Endo and Beerdsen on discovery as practice

The new Courts Law essay comes from Seth Katsuya Endo (Florida), reviewing Edith Beerdsen, Discovery Culture, 57 Georgia L. Rev. (forthcoming 2022). The article and the review are great. I used this idea of discovery as norms and practices in teaching that section last week.

Posted by Howard Wasserman on March 21, 2022 at 10:45 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, March 18, 2022

Maybe we have always been crazy as a nation

Long teaching story coming up.

I end the Discovery portion of Civ Pro by having the class argue the discovery issues in Coca Cola Bottling Co. v. Coca Cola. The case involved a contract dispute between a bottling company and Coca Cola following introduction of Diet Coke and New Coke; the bottler sought production of the formula for original Coca Cola, the court agreed and ordered production, and Coca Cola refused to comply with the order, resulting in sanctions. (Marcus, Redish, Sherman, Pfander included this as a note case--I repurposed it as an in-class hypo). I split the room in half, each representing one party. Many students highlight it as an especially fun class session.

Slate's Hang Up and Listen podcast ends each episode with the line "Remember Zelmo Beatty" (Beatty is a Hall of Fame professional basketball player from the '60s and '70s, the "remember" thing is a riff on an old interview in which David Letterman asked Shaq about old-time players and Shaq admitted to not knowing who Beaty was). I stole the idea end each Civ Pro class session by telling the students to "Remember" someone who is in some obvious or non-obvious way relevant to something we did in class that day. Sometimes it is clear--David Souter on the day of Twiqbal or Milton Shadur on the day of his quixotic effort to get defendants to follow the damn rules in their responsive pleadings. Sometimes it is more obscure--Raymond James Donovan on the day of relation back, Tennessee Williams on the day of International Shoe, or Preston and Charlotte Grace on the day of tag jurisdiction Sometimes it is about the day rather than the course materials--Robert Briscoe (the Jewish former Lord Mayor of Dublin) yesterday. (I leave it to readers to figure all of these out). Once students overcome the initial confusion of why they are supposed to remember some random person, they have fun with it; at least one person does an end-of-semester creative project with pictures or biographical information on everyone they are supposed to remember.

Today we did the Coca Cola problem and I told them to remember Roberto Goizueta Cantera, the CEO of Coca Cola during the New Coke fiasco. Goizueta was born in Cuba, educated in the U.S., and worked for Coca Cola in Cuba before defecting after Castro came to power. Nevertheless, in the public blowback to New Coke, some people pointed out that he was Cuban and suggested that New Coke was a communist plot.

Thus the title of this post.

Posted by Howard Wasserman on March 18, 2022 at 01:29 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, March 16, 2022

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

Posted by Howard Wasserman on March 16, 2022 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, March 14, 2022

What is a SLAPP law?

The Southern District of New York denied Donald Trump's motion for leave to amend to add an affirmative defense and counterclaim under New York's amended (and-retroactive?) anti-SLAPP law. I will test on this case this year or next, because it discusses several elements of denying leave to amend--undue delay, dilatory motive, futility. The court called out Trump's incompetent newish attorney for insisting that leave should not be denied for futility because they should not have to defend every use of the SLAPP at this stage; that argument ignored (or did not understand) that futility applies a dismissal analysis at the amendment stage--the court explores whether an amendment can survive dismissal and if it cannot, the court denies leave. The case also raises a nice Erie question--Judge Rakoff in Palin held the SLAPP law is retroactive but an intermediate state court held it is not; what is a district court to do going forward?

For this post, I want to focus on the court's analysis of the SLAPP law as it affects the futility analysis, because I think people are confused as to what a SLAPP law is and does. Trump wanted to add an affirmative defense and a counterclaim under the SLAPP law. The court rejected both. I think it reached the right conclusion for the wrong reason as to the former and may have been wrong as to the latter.

Defense

The court rejected the affirmative defense as futile because the SLAPP does not create an affirmative defense. It does not involve new facts and does not "knock[] plaintiff out of court if all the allegations of her complaint are true." Instead, it provides for recovery of fees for success and changes procedures applied to state-law actions.

But this seems to hang on semantics. We typically think of two types of defenses--failure of proof (the plaintiff cannot prove her alleged, disputed facts) and affirmative (new facts preclude liability if the plaintiff proves her facts). The SLAPP law does require new facts--the speech sued on must have some "connection with an issue of public interest" to trigger special procedural protections or to make attorney's fees available; although it is not clear Trump's lawyer pleaded them in the proposed amended answer (a distinct basis for futility), they are additional facts. Without those new facts, the SLAPP law still provides some type of defense--a way to avoid liability for a claim.

If the court is correct that SLAPP is not an affirmative defense to be pleaded in an answer, how or when does a defendant raise an anti-SLAPP law? Perhaps the law comes into play by providing the legal standards and mechanisms when Trump moves to dismiss. It is not a distinct defense, but the legal standard governing dismissal. I am not sure that is right. A party can assert failure to state a claim as an affirmative defense in a pleading rather than via motion; the SLAPP law provides a different standard for deciding a plaintiff  fails to state a claim. We might think about it this way--would/could Trump have pleaded the SLAPP law as a defense in an original responsive pleading? If a defendant planned to ask for anti-SLAPP attorney's fees (which are available in federal court) should he prevail, would he include that among the defenses pleaded in the answer? If so, it is a defense that can be raised in an amended responsive pleading.

If the court is right, this decision does not hurt Trump. Without this new answer, he can move to dismiss the complaint (coming post-answer it would be a motion for judgment on the pleadings, but same difference for these purposes) and argue that SLAPP procedures apply to that motion. He will lose on that, as explained below; but he will be able to at least attempt to assert the law not as an affirmative defense but as the legal standard for attacking the validity of the claim.

If the court is wrong and the SLAPP law is a defense that can be raised in a pleading, the court correctly denied leave as futile for a different reason--the SLAPP law's procedural provisions (other than the fees provision) do not apply in federal court, where FRCP 12 and 56 provide the standards and mechanisms for pre-trial review and rejection of a state claim. The amendment would be futile because the new defense would not survive a Rule 12(f) motion to strike an insufficient defense.*

[*] Futility generally applies to new claims that cannot survive a motion to dismiss. But an affirmative defense, which involves new facts and new law in the same way as a claim, can be futile if it cannot survive a motion to strike (the counterpart to dismissal for a defense).

Counterclaim

The court held amendment was futile as to the counterclaim because the SLAPP law does not apply in federal court, so the counterclaim would not survive a motion to dismiss. This was wrong.

New York's amended SLAPP law allows a defamation defendant to recover compensatory and punitive damages on a showing of improper purpose in bringing the defamation action; it is analogous to the tort of abuse of process (which often is asserted as a counterclaim to a specious tort claim). A counterclaim cannot be swept aside on Erie/Hanna grounds. Used as a counterclaim, the SLAPP law does not dictate the manner and means for adjudicating substantive defamation rights in Carroll's claim (the manner and means derive from the FRCP); it provides a distinct set of state-law rights and remedies for Trump for a distinct injury. Regardless of the counterclaim's chance of success, it is different than ordinary procedural rules for defending the defamation claim and cannot be deemed categorically unavailable in federal court.

Again, I am criticizing the court's reasoning more than its conclusion to deny leave, which was probably correct. It might have found the amendment futile (and denied leave to amend) by focusing on other reasons  the counterclaim would not survive a motion to dismiss. Perhaps the SLAPP law is not retroactive; perhaps the proposed amended pleading did not allege facts showing improper purpose. Alternatively, the court may have rightly denied leave for reasons other than futility, such as undue delay--Trump waited more than 14 months before seeking leave without good explanation. But the court's reasoning in rejecting amendment is problematic.

Posted by Howard Wasserman on March 14, 2022 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, March 11, 2022

No offensive challenges to SB8 against licensing bodies

In Whole Woman's Health v. Jackson, an offensive challenge to SB8, eight Justices (all but Thomas) held that litigation could proceed against state licensing bodies (medical, nursing, pharmaceutical, etc.) to enjoin them from "indirectly" enforcing the heartbeat ban by using performance of a prohibited abortion as the predicate for an administrative sanction. The Court remanded to the Fifth Circuit, which certified to the Supreme Court of Texas whether state law allowed such indirect enforcement. The state court on Friday answered that certified question "no," holding that making private civil litigation the "exclusive" enforcement mechanism meant that no state body had any power to regulate or sanction any person for any SB8 violations in any way.

This is a setback, although a relatively minor one because the action against the medical board could have limited effect. An injunction would have stopped the boards from pursuing licensure actions against providers. It would not have protected those aiders-and-abetters (advocates, Uber drivers, etc.); the state does not license or regulate them or their behavior. And it would not have stopped private "any persons" from bringing civil suits. The suit and injunction would have provided federal precedent declaring SB8 constitutionally invalid and a speedier path to SCOTUS review of the merits. But it would not have stopped the main enforcement mechanisms or cleared the way for providers to return to medical practice as usual.

There may be a way to salvage this action and push federal litigation. One plaintiff, Alan Braid (the doctor who announced having performed a prohibited abortion in the Washington Post), is a defendant in two state-court actions over that abortion, one brought by the Texas Heartbeat Project and one by a disbarred Arkansas lawyer under house arrest. Braid could amend the complaint to name them as defendants acting under color and seeking to enjoin them from pursuing their civil actions. (Braid also has a § 1983 and interpleader action in federal court in Illinois against a third SB8 plaintiff who nonsuited).

Meanwhile, Braid can move to dismiss the pending state actions on the ground that SB8 is constitutionally invalid and proceed to litigate the constitutional issues defensively in state court.

In a bizarre way, this might help judicial challenges to SB8. As Rocky and I argue, this offensive challenge was dubious, given how SB8 was drafted and how it operates. Unable to pursue any "ordinary" mechanism, providers and advocates can focus on unusual-but-available mechanisms on which they are more likely to succeed.

Posted by Howard Wasserman on March 11, 2022 at 01:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 07, 2022

Disaggregating government and its employees

Civil rights doctrine suffers from strange and inconsistent disconnects between government and government officials, especially law enforcement. Municipal liability is difficult (and state liability impossible) because individual officers are the presumptive targets of litigation. Individual officers have qualified immunity because it is unfair to hold them individually liable for all but the most egregious mistakes (and even then . . .). But indemnification means the municipality pays any judgment and thus bears the costs, if not the liaiblity, for the rare non-immune constitutional misconduct. The government bears the burden (and costs) to handle misbehaving officers outside of constitutional liability.

But that disconnect leaders to this Second Circuit case holding that the New York Police Benevolent Association, the officers' union, could intervene in a lawsuit challenging New York and NYPD policies during the 2020 George Floyd protests. The PBA, on behalf of its members, had a distinct interest in defending police policies and practices against constitutional challenge, an interest the government of New York City could not adequately protect. It is true that an employer's interest may diverge from that of its employees. But the logic of this decision places the union, on behalf of its members, on an equal footing with the municipal government and the department (which has never shown itself hostile to or willing to do anything about misbehaving officers) in making public policy and in deciding what policies are constitutionally valid and wise.

Posted by Howard Wasserman on March 7, 2022 at 09:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, March 03, 2022

If only they could sue the state

SCOTUS holds that the (new) state AG should have been allowed to intervene when the (new) secretary of health services declined to continue litigating the offensive challenge to the constitutional validity of a 15-week abortion ban. Justice Alito writes for 6; Kagan writes for herself Breyer, agreeing that intervention should have been allowed but objecting to majority grounding its analysis in constitutional imperatives surrounding state power to defend its laws; and Sotomayor dissents.

Of course, all of this could be avoided by recognizing that the state enforces state law (through whichever individuals state law designates) and allowing rights holders to sue the state to stop enforcement of the law (by whichever individuals state law designates). Were the challenges to the abortion ban able to sue and litigate against Kentucky, there would be no need for the federal court to consider intervention; the question of who is deciding Kentucky's litigation choices and strategy could be resolved within the state executive.

Posted by Howard Wasserman on March 3, 2022 at 05:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Egbert v. Boule argument

My SCOTUSBlog recap and the transcript. A couple of moments of levity, which I used in the headline. The first involves Gorsuch saying the Smuggler's Inn "has been disparaged in its quality today" and Boule's counsel interjecting "unfairly." The second involves Alito, asking why Boule told Egbert about his arriving guest and wondering what he might do if "one of us was going to check in" and Kagan adding "suspicious characters," which made Alito laugh.

I do not predict these things because I always get them wrong. But the argument went better for Boule than I expected. Everyone pushed Egbert's counsel and the U.S. about how this case differs from an ordinary 4th Amendment Bivens claim and did not push back much on Boule's argument that the analysis ends when events occur near the border. I do not know if that means Boule wins. But they seemed to be wrestling with the mess they created in Abbassi.

Posted by Howard Wasserman on March 3, 2022 at 09:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 01, 2022

The future of Bivens

I am covering Egbert v. Boule for SCOTUSBlog; argument is tomorrow. My preview is here. The plaintiff is a character--he runs the "Smuggler's Inn" B&B near the Canadian border, has "SMUGLER" as his license plate, knew that some guests used his property to get into Canada (his land abuts a fenceless border), and was convicted of violating Canadian immigration law for helping people cross the border. The case arose from Boule trying to keep a Border Patrol agent from questioning a B&B guest and the agent getting pissed off and reporting him to the IRS and other agencies. Given the characters involved, the case resembles Wilkie v. Robbins--western iconoclast who does not trust or want to cooperate with the government and government officials responding by abusing legal apparatuses to make his life difficult.

The case will tell us what, if anything, remains of Bivens. The cert petition asked the Court to reconsider Bivens, but the Court did not grant on that QP. The agent (although not the U.S.) argues that Bivens extensions are categorically barred. The question is whether being a Border agent and/or being near an international border overcomes the many ways this case is closer to Bivens than to the Court's recent rejections.

Posted by Howard Wasserman on March 1, 2022 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 28, 2022

JOTWELL: Erbsen on Bookman & Shanahan on lawyerless courts

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022), which considers how procedure operates in the many courts dominated by pro se litigants. This is the latest in a run of articles and JOTWELL essays considering procedure on the ground outside of the federal courts we focus on in the classroom and in much scholarship.

Posted by Howard Wasserman on February 28, 2022 at 08:48 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 16, 2022

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part I

The first of Rocky's and my (hopefully) three SB8 articles has been published in American University Law Review. This focuses on how providers cannot and can challenge SB8 through offensive litigation, including why WWH was correct and other offensive options the Court did not consider. AULR's editors were impressive in turning the piece around in less than three months after the Court's decision We are editing the second piece, forthcoming in SMU Law Review and focused on how defensive litigation may play out. The third piece, on New York Times as historical analogue, sits on a law review editorial desk near you.

Posted by Howard Wasserman on February 16, 2022 at 10:28 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, February 14, 2022

Weird procedure and Palin v. New York Times (Updated Several Times)

Jed Rakoff is an excellent judge. But his approach to Palin v. NYT has been procedurally bizarre.

First, he held an evidentiary hearing (testimony from James Bennett, the op-ed's primary author) in deciding a 12(b)(6) motion, without converting to summary judgment; the Second Circuit reversed. Second, Rajoff denied summary judgment, hinting that the evidence did not support actual malice by clear-and-convincing evidence but that it was not his job to weigh the evidence. This was proper, although unusual--most judges are not so forgiving of plaintiffs.

Today, Rakoff announced he would grant the Times's motion for judgment as a matter of law, although the jury is deliberating and he will allow the jury to reach a verdict. It is not unusual for a judge to let a case go the jury knowing he will grant JML. He gives the jury a chance to get it "right" and enters judgment on the verdict, insulating his opinion from appellate review. But he can resolve the case as he sees fit if the jury gets it "wrong." But it is unusual (and perhaps improper?) to announce that intention while the jury is deliberating. If any juror learns of Rakoff's announcement, that seems to provide a basis for reversal of a judgment on the verdict or at least a new trial--the deliberations become a sham if the jurors know how the case ends regardless of what they do. If there is a chance the jury learns of his announcement it presents at least a colorable new-trial or appellate issue that will make life tougher for the Times in defending the judgment. [Update: On further thought, Rakoff could grant a new trial, then grant summary judgment before the new trial begins or JML after the plaintiff's case n the second trial]

Further Update: Jury finds for NYT. This moots the above discussion, although it remains a weird process, unless we somehow learn that jurors learned about Rakoff's plan before the verdict. Watch out for news reports saying that NYT lives another day or that the Court or jury reaffirmed NYT, which reflect basic ignorance about what district courts do.

Further, further Update: It turns out the use of NYT and actual malice as the standard is based in part on New York's anti-SLAPP statutewhich codifies actual malice (likely as a hedge against SCOTUS overruling)* although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.

[*] This presents the opposite of a zombie law--a statute that continues providing heightened protection of individual rights when the Constitution does not require that heightened protection. Like RFRA or RLUIPA. What do we call them? Super Laws, as they not only are no undead but enjoy extraordinary powers? I wish I had thought to include this opposite category in the paper.

Further, further, further update: The jury found out via push notifications on their phones. The jurors insist it did not affect their deliberations. Judge Rakoff notifed the parties and gave them the opportunity to seek any relief they believe appropriate based on this, while noting that no party objected to his plan to issue his FRCP 50 order while allowing the jury to continue deliberating. Everyone is scrambling to figure out what effect, if any, this will have.

Posted by Howard Wasserman on February 14, 2022 at 07:17 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, February 11, 2022

JOTWELL: Smith on Citron & Solove on privacy harms

The new Courts Law essay comes from Fred Smith, Jr. (Emory) reviewing Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. ___ (forthcoming 2022), which explores how to better recognize and remedy privacy violations.

Posted by Howard Wasserman on February 11, 2022 at 10:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client and to educate the students who pay their client for an education) as traitors, robbers, mercenaries, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Posted by Howard Wasserman on January 22, 2022 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

Posted by Howard Wasserman on January 21, 2022 at 03:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 19, 2022

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.


A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

 

Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 10, 2022

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

Posted by Howard Wasserman on January 10, 2022 at 11:14 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, January 07, 2022

The return of three-judge district courts?

Steve Vladeck proposes as a solution to the problems of shadow dockets, emergency litigation, and plaintiffs shopping for one judge (often in a single district or division) to issue the injunction that will provide the basis for emergency relief. Steve is correct about three-judge courts with immediate SCOTUS review as the solution to those problems--plaintiffs cannot judge-shop, cases move quickly but in a less emergent way, decisions should better and better explained, and the process will look more normal.

I would propose an addendum that three-judge courts do not solve the distinct problem of universal injunctions, because having three judges as opposed to one judge does not overcome the basic limitation on the court's remedial power and the inability of any court to bind or protect non-parties with its judgment.

Posted by Howard Wasserman on January 7, 2022 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, January 06, 2022

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

Posted by Howard Wasserman on January 6, 2022 at 12:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Posted by Howard Wasserman on January 5, 2022 at 09:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 03, 2022

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victorybut instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and libertybut instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

Posted by Howard Wasserman on January 3, 2022 at 11:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)